Thursday, September 04, 2014

Ind. Decisions - "Indiana, Wisconsin same-sex marriage bans fall"

The Seventh Circuit’s combined ruling in Baskin v. Bogan (the Indiana case) and Wolf v. Walker (the Wisconsin case) took a markedly different approach from that employed in many of the federal courts’ rulings against bans on same-sex marriage. It had as much philosophical and sociological content as legal analysis, and it used a good measure of sarcasm about and even something close to disdain for the two states’ arguments. Although decided by a three-judge panel, it had the distinctive style of its author, Circuit Judge Richard A. Posner, a jurist with a sharp wit, a devotion to scholarship, and an eclectic range of public policy interests, many non-judicial.

In this opinion, he even made use of the writings of the nineteenth-century English political philosopher and social commentator, John Stuart Mill, in dismissing the states’ arguments that many people find same-sex relationships repulsive.

As for legal arguments, the Posner opinion decided only the claim of discrimination in the two states’ bans on same-sex marriage and thus stayed away from the debate that figured in many cases about whether such bans violated a fundamental right — keyed to due process guarantees – for same-sex couples to enter marriage equally with opposite-sex couples.

In finding that the two states’ laws do discriminate against same-sex couples, the Seventh Circuit’s ruling avoided applying a more demanding constitutional test, concluding that the bans at issue were “irrational and therefore unconstitutional.” The “rational basis” test is the mode of analysis that is most generous to challenged to state laws.

Denniston also notes:

The next ruling from a federal appeals court is expected from the U.S. Court of Appeals for the Sixth Circuit, which has under consideration laws against same-sex marriage in the four states within its geographic area: Kentucky, Michigan, Ohio, and Tennessee. That decision could come at any time. Other federal appeals courts have already struck down bans in Oklahoma and Utah (the Tenth Circuit), as well as Virginia (the Fourth Circuit).